62 Ind. App. 338 | Ind. Ct. App. | 1916
This was an action brought by appellant against appellees Johns and Johns for the partition of real estate. Appellant filed an amended complaint to which he made other parties defendants, including the New Haven Supply Company, alleging that they each, except Joseph J. Johns, had or claimed some lien on the real estate, and asked that his title be quieted as to all defendants, and for partition and the establishment of the priorities of the liens. Some of the defendants filed disclaimers, and all the others except Joseph J. Johns, hus
The cross-complaint of Irma Johns was against appellant and her codefendants, and by it she asked to recover certain rents from appellant, who was her cotenant, and to quiet title against all codefendants, including the New Haven Supply Company.
Appellee Girardot filed a cross-complaint against appellant andlrma Johns and her husband, setting up a written lease on the real estate executed by appellant and acquiesced in by Mrs. Johns. The New Haven Supply Company filed a cross-complaint against appellant and all its codefendants, setting up a mechanic’s lien against said real estate, and asking for its foreclosure. Subsequently, on motion of Mrs. Johns, the New Haven State Bank was made a defendant and it filed a cross-complaint against appellant and its codefendants, setting up a mortgage on the real estate and asking that said mortgage be declared a lien and paid out of the proceeds of sale. The issues were closed by a general denial to all the cross-complaints. The cause was submitted to the court, and the court found that appellant and Mrs. Johns were the owners of the real estate described in the amended complaint, as tenants in common; that the said bank held a mortgage, which was a first lien after payment of costs; that the New Haven Supply Company held a mechanic’s lien which was next to be paid; that appellant paid some liens on the real estate, and that his cotenant, Mrs. Johns, owed him a certain sum, which was next to be paid out of her part; that appellant had kept possession of the real estate adverse to his cotenant, Mrs. Johns, and that he owed her a certain sum for rents, which was a lien on appellant’s part of the real
Appellant has undertaken to perfect a term time appeal, and assigns as error: (1) That the court erred in making new parties over objection of appellant after submission of the cause, and after a portion of the evidence was heard; (2) that- the court erred in overruling appellant’s motion for a new trial. Appellant’s motion for a new trial is for the following causes: First, that the court erred in permitting new parties defendant made parties to this action after cause was submitted for trial, and a portion of the evidence heard. Said action of the court in making new parties being over the objection of the plaintiff, and to the ruling of the court permitting such parties to be made defendants at said time the plaintiff then and there excepted. Second, that the decision of the court is contrary to law. Third, that the decision of the court is not sustained by sufficient evidence.
Note. — Reported in 113 N. E. 320. See under (1) 3 C. J. 1035; 2 Cyo 785; (3) 4 O. J. 589; 3 Cye 182.